LIF Pty Limited v Roads and Maritime Services

[2019] NSWLEC 1507

Land and Environment Court

New South Wales

Medium Neutral Citation:	LIF Pty Limited v Roads and Maritime Services [2019] NSWLEC 1507
Hearing dates:	Conciliation conference on 17 September 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Class 3
Before:	Dixon SC
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Compensation is determined in the sum of $806,842.60, pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of a lease for a specified period of four years, as described in Memorandum AE293511 at NSW Land Registry Services, of part of the land in Certificate of Title 21/712243 (known as 13 Clyde Street, Batemans Bay) shown as Lot A RMS Sketch No. 0001 145 SK 0017-CA. (3)   The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment to be issued by the Respondent, generally in accordance with the deed and direction previously provided by the Respondent to the Applicant, within 28 days of sealed orders in these proceedings. (4)   Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction to payment, the Respondent is to pay the compensation less any advanced compensation paid (Final Payment). (5)   The Respondent is to pay statutory interest in respect of the Final Payment calculated in accordance with sections 49 and 55 of the Act. (6)   The Respondent has agreed to pay the Applicant’s reasonable costs of the proceedings, in the sum of $97,792.51, at the same time as the Final Payment provided that the Applicant has duly completed and delivered to the Respondent a direction as to payment for those costs (to be issued by the Respondent). There is to be no interest payable on such costs.
Catchwords:	COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	LIF Pty Limited (Applicant) Roads and Maritime Services (Respondent)
Representation:	Counsel: L Watersen (Applicant) M Astil (Respondent)   Solicitors: King & Wood Mallesons (Applicant) Minter Ellison (Respondent)
File Number(s):	2019/142106
Publication restriction:	No

Judgment

1. COMMISSIONER: This is a Class 3 compensation appeal by LIF Pty Limited (Applicant) objecting to the determination of compensation for the compulsory acquisition of a four year lease over part of land in Lot 21 in Deposited Plan 712243 located at 13 Clyde Street, Batemans Bay NSW (the Land) under s 66 of the Land Acquisition (Just Terms Compensation) Act1991 (NSW) (Just Terms Act).

2. By way of background I note, on the acquisition date of 2 November 2018, the Land was used by the Applicant to operate a shopping centre known as the “Bridge Plaza Shopping Centre”. With effect from the acquisition date, the Roads and Maritime Services (Respondent) acquired by compulsory process a leasehold interest over part of the Land comprising Lot A in RMS Sketch 0001 145 SK 0017-CA (the Acquired Land) for a period of four years, as described in Memorandum AE293511 recorded at NSW Land Registry Sydney. For the purposes of the Just Terms Act, the public purpose for which the lease of the Acquired Land was acquired by the Respondent was the new bridge on the Princes Highway over the Clyde River at Batemans Bay.

3. In accordance with the Court’s usual practice, the List Judge arranged for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 September 2019. I presided over the conciliation conference.

4. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions). This decision involved upholding the appeal and determining compensation in the sum of $806,842.60, pursuant to s 55 of the Just Terms Act, for the acquisition of a lease for a specified period of four years for the Acquired Land.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In this instance, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, as required by s 34(3) of the LEC Act, the Court makes the following orders:

1. The appeal is upheld.

2. Compensation is determined in the sum of $806,842.60, pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of a lease for a specified period of four years, as described in Memorandum AE293511 at NSW Land Registry Services, of part of the land in Certificate of Title 21/712243 (known as 13 Clyde Street, Batemans Bay) shown as Lot A RMS Sketch No. 0001 145 SK 0017-CA.

3. The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment to be issued by the Respondent, generally in accordance with the deed and direction previously provided by the Respondent to the Applicant, within 28 days of sealed orders in these proceedings.

4. Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction to payment, the Respondent is to pay the compensation less any advanced compensation paid (Final Payment).

5. The Respondent is to pay statutory interest in respect of the Final Payment calculated in accordance with sections 49 and 55 of the Act.

6. The Respondent has agreed to pay the Applicant’s reasonable costs of the proceedings, in the sum of $97,792.51, at the same time as the Final Payment provided that the Applicant has duly completed and delivered to the Respondent a direction as to payment for those costs (to be issued by the Respondent). There is to be no interest payable on such costs.

…………………………

S Dixon

Senior Commissioner of the Court

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